reflections of a retired criminal court judge

Sexual Assault and the Criminal Courts: A Response to the Globe and Mail Editorial

Following the Bill Cosby and Jian Ghomeshi affairs, a year-end Globe and Mail editorial (published December 28/29th and entitled “The year justice changed”) proclaimed 2014 “the tipping point in a shift that is alarming to a country built on… due process and… fairness,… from a presumption of innocence to a tolerance of public shaming.” The editorial correctly spoke to fundamental issues about our criminal justice system which warrant attention. Public shaming versus due process. A presumption of innocence versus a presumption of guilt. Crowd “justice” versus justice in the courts.

What was so alarming about the Globe editorial, however, was its simplistic conclusion that the supposed “shift” to “public shaming”… “is easily explained by the failure of our justice system to defend sexual assault victims.” The specific problems identified were:

1) the police dismissing the majority of victims’ complaints,
2) courts not imposing “tougher sentences on convicted offenders (the average in Canada is two years, often conditional)”, and
3) our law of consent which is “progressive and clear on paper” but “mud” in court as “… our society continues to think it reasonable that women bear some of the responsibility….”

No sources for these assertions were identified.

In my experience, the above reveals a shocking misunderstanding about the criminal law of sexual assault, and how the courts have dealt with it since the last major reform over 30 years ago. I felt I was in a time warp, and did not recognize what I was reading.

First, the crime of “sexual assault” as defined in the early 1980s does not only refer to intercourse without consent (previously called “rape”). It extends to any unwanted touching which violates the sexual integrity of the complainant. The spectrum of sexual assaults runs from an unwanted patting on the buttocks, groping at the genitals, caressing of the breast area (over or under clothing) to intercourse. As one of the factors considered on sentencing is the severity of the particular fact situation, sentences for “sexual assault” run the gamut. Properly so.

Second, police have been trained to lay charges when they have “reasonable grounds” to believe that an offence has occurred. The test for “reasonable grounds” is not high. A complainant who reports that he or she has experienced a sexual assault can expect that these allegations will be taken seriously, investigated, and will likely lead to charges. The police cannot lay charges when there are no witnesses, and victims, for complex social reasons (to do with poverty, dependence, personal or family issues, fear of cross-examination, to name but a few) choose not to report.

Third, crown attorneys traditionally have discretion about how they pursue their cases in court. Most criminal charges (well more than 90%) are resolved without a trial. Most cases are heard by a judge alone. Most in the provincial court, in Ontario called the Ontario Court of Justice. Plea bargaining is the mechanism by which criminal courts manage their caseload. When alleged offenders take responsibility for some offence, and the crown proposes a sentence which the defendant can live with, and would be acceptable to a judge “as a joint submission,” matters typically end with no need for any trial. Without this practice, the courts would collapse.

With respect to domestic violence, this discretion of the crown has been considerably curbed. Often crowns pursue cases to the point of calling evidence from the complainant, even when she has recanted her story, and the chances of a conviction are minimal. This practice is controversial, and has its pros and cons. Where the crown does not “withdraw” the charges, the court may impose other remedies even without a conviction. The statistics will show another acquittal by a judge, but the reason for the acquittal has little to do with the system.

Fourth, judges are prohibited from basing their decisions on stereotypical assumptions. Except in very limited circumstances, judges cannot assume that a truthful complainant would have reported immediately. Reputation evidence is inadmissible, as is questioning on prior sexual conduct, except in strict situations after a hearing. Judges must give reasons for their findings of fact. Their reasons must be based on the evidence before the court, and are subject to review by appeal courts.

The real issue for a judge is determining credibility. The Supreme Court of Canada has defined a very specific test for credibility. Extensive case-law has refined it, including the need for judges to consider the special circumstances of particular complainants (children, young people, those with disabilities, and those from other cultures). If a judge cannot make findings of fact beyond a reasonable doubt, however, there can be no conviction. As a practical matter with respect to any offence, delays in getting to trial do not help.

Since the 1980s, the criminal law, and the criminal courts (in Ontario at least), have tried to make it easier for complainants. The appeal courts have given trial judges greater powers to constrain abusive cross-examination. Numerous mechanisms now exist which assist witnesses giving their evidence in court, and protect them outside. An elaborate victim witness program has long ago been created to inform witnesses about the system and provide support if they need to testify. A tide of child sexual abuse cases has swept through the courts, and been dealt with, many historical and involving powerful people.

It would be useful if the media focused on how the criminal justice system actually works. The system is complex; the administration of justice is a provincial responsibility, and practices may vary across the country. Perpetuating stereotypes about the system which are out of date, however, does no service to anyone. It deters potential complainants from coming forward, and ignores the real issues that undermine the delivery of justice in our criminal courts (including the problem of delay).

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